Faced With A Trump Presidency, Could A State Actually Secede?

In the face of a surprisingly close presidential election one tech mogul has promised to fund "a legitimate campaign for California to become its own nation."

So: Can a state secede?

In 2006, Justice Antonin Scalia said no.

In a letter written to a screenwriter, the former justice, who died in February, was unambiguous:

"If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, 'one Nation, indivisible.') Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit."

Law professor Eugene Volokh said ... it depends on how Americans feel.

While calling the question "foolish and pretty obviously empty posturing," Volokh suggested, in 2010, that the Civil War tells us little:

"If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that 'in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right' will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little.

"And beyond that, even if there is some precedent of some sort properly set by the Civil War (and I continue to disagree that there is), any such precedent can’t tell us much about consensual secession. The talk I occasionally hear of secession (again, talk that I think is not really serious) is not about departure in the face of military opposition — it’s about creating a political sentiment in some place in favor of seceding, and a political sentiment in the rest of the country in favor of allowing the secession. The results of a bloody civil war tell us nothing about the propriety of a Velvet Divorce."

The secession discussion, obviously, goes back to the Civil War.

The Supreme Court, back in 1869, said no — but in a way that left open the possibility Volokh discussed.

Chief Justice Salmon Chase the decision for the court about whether actions taken by Texas after it seceded from the Union during the Civil War should be honored. The court held that Texas never actually left the Union — because it could not do so unilaterally — and so, therefore, actions taken by the Texas government under the Confederacy were invalid.

Chief Justice Salmon Chase wrote the decision for the court about whether actions taken by Texas after it seceded from the Union during the Civil War should be honored. The court held that Texas never actually left the Union — because it could not do so unilaterally — and so, therefore, actions taken by the Texas government under the Confederacy were invalid.

First, he discussed the country in general:

"The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?"

Then, Chase discussed what that meant for Texas:

"When ... Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. ... The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

"Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null."

Chris Geidner is a reporter for BuzzFeed News and is based in Washington, DC.